The Travel Ban Decision: How Bad For Immigration Policy?

A women participates in a demonstration against the Trump administration's travel ban as protesters gather outside the U.S. Supreme Court following the court's 5-4 decision upholding the travel ban on people from several primarily Muslim nations. (Photo by Mark Wilson/Getty Images)

On June 26, 2018, in a 5-4 decision, the U.S. Supreme Court ruled that the Trump administration’s decision to ban the entry of individuals from a group of primarily Muslim countries was constitutional. The court ruled, “The Proclamation is squarely within the scope of Presidential authority under the INA [Immigration and Nationality Act].”

Supreme Court decisions typically carry ramifications well beyond an immediate case and, indeed, this decision’s impact on U.S. immigration policy could be serious and wide-ranging. To better understand the implications of the Supreme Court decision, I interviewed Stephen Yale-Loehr, a Cornell Law School professor and an advisor to the National Foundation for American Policy.

Stuart Anderson: What is the immediate practical significance of the Supreme Court’s decision?

Stephen Yale-Loehr: The decision upholds the travel ban, which means that some citizens from the affected countries may be denied entry to the United States. More indirectly, the decision will embolden the president to continue his efforts to restrict both legal and illegal immigration. Although the president has not persuaded Congress to build an actual wall on the U.S.-Mexico border, he has effectively created an invisible wall by restricting legal immigration in a variety of ways.

Anderson:Section 212(f) of the Immigration and Nationality Act states: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” How broad is the president’s authority under 212(f)?

Yale-Loehr: Based on the court’s ruling, it is quite broad. The majority held that this section “exudes” deference to the president. But that deference is not unlimited. A president has to find that denying entry to certain noncitizens would harm U.S. interests. Thus, a president cannot invoke this section on a whim. Courts struck down the president’s first two travel bans. To justify the third travel ban, the president ordered a comprehensive evaluation of every country’s compliance with visa requirements and information sharing. He then issued a proclamation with extensive findings about certain countries’ deficiencies. Even then, the third travel ban garnered only five votes on the Supreme Court.

Anderson: Based on the Supreme Court decision, what test will courts now use to determine if a presidential action using this authority is unconstitutional?

Yale-Loehr: The court today held that it will use “rational basis” review, meaning whether a president’s immigration action “is plausibly related to the government’s stated objective.” That is not a tough test to satisfy. But it does mean that courts will review a president’s immigration actions and not completely defer to whatever the president does.

Anderson: How would you respond to people who are concerned (or perhaps pleased) that the Supreme Court decision means the president can now “do anything he wants” on immigration policy?

Yale-Loehr: The president cannot do anything he wants on immigration. The Supreme Court’s decision concerned noncitizens seeking entry to the United States. Such individuals lack most constitutional rights. By contrast, noncitizens in the United States, even if they lack proper status, have constitutional rights. Thus, for example, the president cannot deport immigrants without a hearing. To do so would raise serious due process and equal protection concerns.

Anderson: How bad could this decision end up being for people who believe U.S. immigration policy should be welcoming, rather than unduly restrictive?

Yale-Loehr: In the short term, this decision and the administration’s other immigration restrictions signal that America no longer welcomes immigrants. This is hurting our economy: tourism is down and fewer international students are coming to the United States. The restrictions on legal immigration are particularly ironic given labor shortages in many industries.

In the longer term, however, I am optimistic. Ronald Reagan envisioned America as a “shining city on a hill” and I think ultimately a welcoming policy is in America’s best interests and that is what will prevail.

I am the executive director of the National Foundation for American Policy, a non-partisan public policy research organization focusing on trade, immigration and related issues based in Arlington, Virginia. From August 2001 to January 2003, I served as Executive Associate C...